Licence Appeal Tribunal
Safety, Licensing Appeals and Standards Tribunals Ontario
Tribunal d’appel en matière de permis
Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario
Appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a decision of the Registrar of Motor Vehicles pursuant to section 47(1) of that Act – to suspend a licence
Between:
Matthew King
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Dr. Peter Savage, Member Ted Crljenica, Vice Chair
Appearances: For the Appellant: Matthew King, Self-represented For the Respondent: Sonia De Santis, Agent
Place and Date of Hearing: Teleconference, January 13, 2020
REASONS FOR DECISION AND ORDER
A. OVERVIEW
1This is an appeal from a decision of the respondent, the Registrar of Motor Vehicles, to suspend the appellant’s class D driver’s licence for one year by reason of alcohol use disorder. The appellant was notified of the suspension by letter from the respondent dated August 16, 2019.
2For the reasons that follow the Tribunal confirms the decision by the Registrar to suspend and maintain the suspension of the appellant’s class D driver’s licence.
B. LAW
3The respondent has the power under s. 32(5)(b) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”) to suspend a licence in accordance with requirements prescribed in the regulations.
4Subsection 14(1)(a) of O. Reg. 340/94 enacted under the HTA requires that a holder of a driver’s licence not suffer from any physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely.
5Section 14(2)(a) of the O. Reg. 340/94 allows the respondent to consider the CCMTA Standards1 when determining whether the requirements of s. 14(1) are met. Similarly, the Tribunal may take the CCMTA Standards into consideration. However, the CCMTA standards are not binding on the Minister of Transportation or on this tribunal.
6The Registrar has the burden of establishing on a balance of probabilities the ground or grounds to suspend a driver’s licence.
7Pursuant to section 50(2) of the HTA, after a hearing the tribunal may confirm, modify or set aside the decision or order of the respondent to reinstate a licence.
C. ISSUE
8The legal issue for the tribunal to determine is whether the appellant suffers from a medical condition, namely, alcohol use disorder, that is likely to significantly interfere with his ability to drive safely pursuant to section 14 (1)(a) of O. Reg. 340/94.
D. THE EVIDENCE
Overview
9There are several elements in the evidence which cause us concern in considering the appellant’s condition. He has two convictions for driving with over .08 mg of alcohol. Although many years separate these convictions, one is recent. We also considered the appellant’s failure to use available treatment resources. Finally, we are concerned about the appellant’s evidence concerning when he last consumed alcohol.
10We also considered factors that support the appellant’s position. He has had blood test results consistent with abstinence from alcohol for approximately six months; he has regular work; he has taken up martial arts; and he has resolved personal issues that led him to drink. In the end, the question comes down to whether we should truncate the one-year abstention period imposed by the Registrar. In our view, these factors do not overcome our concerns.
Particulars
11The respondent’s evidence was that in May of 1996 the appellant was convicted of driving with a blood alcohol level in excess of .08. His driving privileges were suspended for one year.
12On February 23, 2017, the appellant was again convicted of driving with a blood alcohol level in excess of .08. His driving privileges were suspended for one year. After the expiry of that suspension the appellant attended a Service Canada location to have his licence reinstated. It seems that the appellant’s request was reviewed by the respondent, who requested that the appellant provide a Substance Use Assessment Form.
13The appellant consulted his doctor and she faxed to the respondent the completed Substance Use Assessment form. Although the doctor signed and dated the form on June 24, 2019 it was faxed to the respondent on July 22, 2019. On the form the doctor provided a diagnosis of alcohol dependence, stated that the appellant had not completed a formal addiction treatment program or formal counselling with a physician, nurse practitioner or certified alcohol counsellor. The appellant completed the Alcohol Use Disorders Identification Test as well as the Leeds Dependence Questionnaire. On both he scored himself at zero which would indicate that he has no substance abuse, misuse or dependence issues.
14On August 26, 2019, the appellant’s driver’s licence was suspended pursuant to the suspension letter from the respondent dated August 16, 2019, for reason of alcohol use disorder.
15The respondent advised the appellant that to have his licence reinstated, he must remain abstinent for one year, although this may be reduced to six months if the appellant completes an alcohol treatment program and his physician supports the reinstatement of his driver’s licence. The letter requested that the doctor include the results of a recent bio-chemical marker analysis with a clinical explanation for any markers outside of the normal laboratory range.
16The appellant took this form to his doctor to be completed. The form the doctor submitted bears the same date as the first form she submitted, dated June 24, 2019, and appears to be a copy of the form received by the respondent on July 22, 2019, except that on this most recent form the doctor checked off the boxes under section 10 indicating that a bio-chemical analysis conducted within the last three months showed that the appellant’s bio-chemical markers were all within normal laboratory range. This form appears to have been received by the respondent by fax on August 29, 2019. It also appears that the Alcohol Use Disorders Identification Test and the Leeds Dependence Questionnaire that accompanied that form are the same as those completed by the appellant on the form sent on July 22, 2019.
17By letter dated October 1, 2019, the respondent wrote to the appellant advising that he required additional information from the appellant and his physician, that being confirmation of abstinence for one year, which may be reduced to six months if the appellant completes an alcohol treatment program and his physician is supportive of reinstatement of his driver’s licence. The appellant was advised to again include the results of a recent bio-chemical marker analysis with a clinical explanation for any markers outside of the normal laboratory range.
18The appellant took this form to his doctor. The form faxed to the respondent by the doctor on December 2, 2019, bears the date June 24, 2019. It appears to be the same form as previously submitted except that the doctor inserted a new page 2 on which she checked a box and added a note reporting that the appellant has abstained from alcohol for between 6 and 12 months. She also checked boxes indicating that the bio-markers were within normal laboratory range.
19On page 3, which is a copy of the signed and completed June 24, 2019 form, the doctor added a hand-written note that the appellant has not consumed alcohol since June 2019.
20It was the appellant’s evidence that in accordance with his sentencing following the 2017 conviction he attended counselling for a period of 4 or 5 months in regard to alcohol consumption. In regard to his life situation at the time of the 2017 conviction, he and his ex-wife were going through a separation and as that is now behind him, his life has improved. He has the support of his children and has taken up martial arts. The appellant is working regularly. His job is not in his hometown so he stays at the worksite for 3 weeks and is off work for 3 weeks during which time he goes home.
21When asked if he has entered into an addiction treatment program the appellant explained that he went to a couple of AA meetings but decided that “it was not for [him]”. The appellant enrolled in the Employee Assistance Program at work but determined that he did not need more counselling as he felt that his alcohol problem is behind him. He also testified that he has not consumed alcohol for a period of 10 months, which, based on the date of the hearing, would have been in March 2019.
22When asked if he knows why the doctor indicated on the form that he last consumed alcohol in June, 2019 the appellant responded that this was incorrect, but then tempered his response as to when he last consumed alcohol, saying it was 8-10 months ago. That range places it between March and May 2019.
23The appellant was asked why he has not provided a letter from his doctor in support of the reinstatement of his licence. He stated that because he is out of town for work three weeks at a time, he has not been able to get in to see the doctor.
E. THE PARTIES’ SUBMISSIONS
24The respondent’s position is that the appellant’s family doctor diagnosed the appellant with alcohol dependence and that the appellant should be required to comply with the CCMTA standards, that being one year of abstinence or a shorter period only if he completes a treatment program and his family doctor supports the reinstatement of his driver’s licence. In this case neither condition has been met. The respondent also submitted that the counselling the appellant received following the 2017 conviction is not a treatment program.
25The appellant submitted that the problems that arose from his alcohol consumption are now behind him, that he is working, has taken up martial arts, has the support of his children and has not consumed alcohol for 8 to 10 months. Thus, he submitted that his licence should be reinstated now, rather than having to wait the one year period. He also indicated that as his job does not require him to have a class D licence he is only seeking a class G licence.
F. ANALYSIS
26Although we are not bound by the CCMTA standards we choose to apply them in this appeal. The CCMTA standards provide the appellant’s licence remain suspended until he has been abstinent for one year, which period may be reduced to six months if he completes an alcohol treatment program, his physician is supportive of reinstatement of his driver’s licence, and the registrar be provided with a recent bio-chemical marker analysis with markers within the normal laboratory range or a clinical explanation for any markers outside of that range.
27We will begin with the appellant’s position that although at the time of the licence suspension he held a class D licence he is only seeking an order granting him a class G licence. This tribunal can only deal with the class of licence that was held by the appellant at the time of suspension. We cannot substitute another class of licence or base our decision on the class of licence the appellant is now seeking.
28The appellant’s family doctor diagnosed the appellant with alcohol dependence. The definition of alcohol dependence of the respondent’s Substance Use Assessment form is the repetitive inappropriate use of alcohol associated with loss of control, inability to abstain, a preoccupation with obtaining alcohol and withdrawal symptoms. Pursuant to this definition, a person who is dependent on alcohol represents a potential risk to drive after drinking thus interfering with his or her ability to drive safely.
29Not every person who falls within the scope of this definition is disentitled from holding a driver’s licence. This is inherent in the legislative scheme. Each situation must be assessed on its own circumstances. Here, the onus is on the respondent to establish that the appellant’s alcohol use constitutes a disability and that this disability is likely to significantly interfere with his ability to drive a motor vehicle safely: O. Reg. 340/94, s. 14 (1)(a).
30As the appellant did not lead any evidence to suggest that his doctor’s diagnosis was incorrect, we accept that the appellant was, at the time of submission of the forms by the doctor, as recently as December 2019, alcohol dependent.
31We accept that on the facts before us the appellant’s alcohol dependence is a disability and it is likely to significantly interfere with his ability to drive a motor vehicle safely. The appellant’s 2017 conviction is an indication of the extent to which the appellant’s alcohol dependence can and has affected his driving.
32The respondent bears the burden of establishing that he has sufficient reason to believe that the appellant’s disability is likely to significantly interfere with his ability to drive a motor vehicle safely. If the respondent’s evidence establishes a prima facie case, and we have determined it does, the evidentiary burden is on the appellant to establish that he is not alcohol dependent and/or his dependence does not constitute a disability, or if it does constitute a disability, it is not likely to significantly interfere with his ability to drive a motor vehicle safely. It is our determination that the appellant has not met his evidentiary burden in regard to any of these points.
33We do not accept the appellant’s evidence respecting how long he has abstained from alcohol due to inconsistencies in his testimony and his failure to be forthright. He testified that he last consumed alcohol in March 2019 but on further questioning hedged on that answer, expanding it to as recently as May 2019. This is very close to June 2019, which is the month reported by the doctor. It is our determination that it is probable that the appellant told the doctor he last consumed alcohol in June 2019 and this is probably more accurate than the range provided by the appellant in his testimony.
34The appellant testified that due to his employment that takes him away from his home town for three weeks at a time, he was not able to get in to see his doctor to request a letter in support of the reinstatement of his driver’s licence. We do not accept this explanation. When the appellant is not at work, he is home for three consecutive weeks. He agreed in his testimony that he could have made an appointment to see his doctor in any of the three week periods during which he is home. This has led us to conclude that the appellant is not willing to make the effort needed to gather the evidence he was told would reduce the length of his licence suspension.
35Further, based on the manner in which the appellant summarily dismissed the need to attend an AA program or treatment program that might be available through his workplace EAP or elsewhere, it is our determination that the appellant has not accepted the extent of his dependence on alcohol.
36We commend the appellant for having taken positive steps to improve his life such as finding an outlet in martial arts and for obtaining and holding a job. We also recognize that the appellant’s driving privilege was suspended due to circumstances over which the appellant may not have had complete control. However, in considering the evidence and the applicable law, the appellant has not met the evidentiary burden of displacing the respondent’s evidence that the appellant suffers from alcohol dependence and this dependence constitutes a disability that is likely to significantly interfere with his ability to drive a motor vehicle safely.
37We note that the appellant is of the view that this suspension is a penalty that has been imposed on him as a result of his 2017 conviction. It is not. This suspension is an independent determination by the respondent that the appellant’s condition is likely to significantly interfere with his ability to drive a motor vehicle safely.
38In summary, on the facts before us it is our determination that the respondent has established that he had reasonable grounds to suspend the appellant’s driver’s licence and to maintain the suspension until the appellant complies with the CCMTA standards.
G. CONCLUSION
39Pursuant to subsection 50(2) of the Highway Traffic Act we confirm the Registrar’s decision to suspend and maintain the suspension of the Appellant’s class D driver’s licence.
LICENCE APPEAL TRIBUNAL
Dr. Peter Savage – Member
____________________
Ted Crljenica, Vice-Chair
Released: February 18, 2020